Original precedent

This arises as a result of a judge making a decision in a case in the absence of any precedent or law.

The creation of law in this way by the use of 'original precedent' is not common and is one of the few ways in which judges can use their discretion in law making.  In most situations they would be bound by the doctrine of judicial precedent in which lower courts must follow the decisions of the higher courts for the sake of fairness and consistency.

The concept of original precedent and how a judge may create new law by analogy can be illustrated by looking at the case of Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation (1995).  The case involved the issue of whether the interference with television reception could constitute an actionable nuisance, in which case damages might follow.  The facts were that the defendant company built a large tower block building as part of the Canary Wharf development in London.  The claimants joined in an action with hundreds of other parties who suffered the same interference with television reception as a result of the construction of the tower block.  There was no helpful law on the subject and the judge in question, Lord Justice Pill, turned to Aldred's Case (1611) for assistance.  In that case the principle that the loss of a view, whilst important to most people, is not actionable and was upheld on the reasoning that it was not essential.  By analogy Lord Justice Pill argued that whilst  the interference with television reception was inconvenient, it was not actionable.

Related Items

The items below list this as being related in some way.

Amazon's recommended Books

RSS Feeds